United Kingdom - England

2010: Legal capacity and proxy decision making

Issues surrounding the loss of legal capacity

Guidelines relating to mental incapacity aimed at lawyers and doctors were originally issued by the Law Society and the British Medical Association in 1995 and have been updated in its most recent 3rd edition in December 2009.

Guidance from the General Medical Council, called ‘Good Medical Practice’, came into effect on 13 November 2006 and includes the capacity considerations when relevant. Persistent failure to follow this guidance would put a medical practitioner’s registration at risk (General Medical Council, 2009).

There was a basic presumption against lack of capacity in that mental capacity was assumed to exist unless proved otherwise.

The Mental Capacity Act 2005 provides clear guidelines about determining capacity. According to Section 2 (1), a person is considered to be lacking capacity in relation to a particular matter if at the material time, s/he is unable to make a decision for him/herself in relation to that matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. This is a “decision-specific” test and not based solely on having a particular medical condition or diagnosis. The act further states that lack of capacity cannot be established merely by reference to a person’s age or appearance. Neither can it be based on some condition or aspect of the person’s behaviour which might lead others to make unjustified assumptions about his/her capacity.

The following criteria are set out in the Mental Capacity Act for determining whether a person is unable to make a decision. Section 3 (1) states:

(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable-
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of-
(a) deciding one way or another, or (b) failing to make the decision.

Proxy decision making

Guardianship under the Mental Health Act 2007

Under section 7 of the Mental Health Act of 1983 an application to appoint a guardian can be made for a person on the grounds that:

"He is suffering from mental disorder, being mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which warrants reception into guardianship under this section and

It is necessary in the interests of the welfare of the patient or for the protection of other persons that the patient should be so received."

What are the powers of the guardian?

Once appointed, the guardian has the power to:

take the patient for the first time to the place where she/he is required to live, if the patient does not (or cannot) go there without assistance (the residence power).

take into legal custody and return the patient to the place where they are required to live, if they leave the address without the agreement of the guardian

to decide where the person should live

to require the patient to go to certain places at specific times for the purpose of medical treatment, occupation, education or training

to require access to the patient to be given, at any place where the patient is residing, to any medical practitioner, approved social worker or other person so specified.

restrict a patient's liberty, but not to deprive them of their liberty

Only the residence power may be directly enforced by taking the patient to the place in question if they will not go their voluntarily.... So in large part, the effectiveness of the guardianship relies on moral (rather than legal) authority and the quality of the relationship with the patient.'

The guardian has no power to compel the person to accept any kind of medical treatment. Although the guardian can require the person to reside at a particular place or attend a day centre, s/he does not have a great deal of power to enforce this. If the person under guardianship leaves the place of residence or day centre, the guardian can request the assistance of the local authority or constable to bring him/her back, but the person cannot be forced to stay.

The guardian has no power to take care of any property belonging to the patient. However, if the local authority is the responsible guardian, then under the National Assistance Act 1948 s. 48, social services are obliged to take steps to protect a person's property if s/he is admitted into hospital or residential accommodation.

What is the procedure for appointing a guardian?

An application for guardianship may be made by the nearest relative of the person or by an Approved Mental Health Professional (AMPH) and addressed to the local social services authority of the town in which the person for whom the measure is intended resides. The person making the application must have seen the person in the last 14 days.

The guardianship application must be accompanied by two medical recommendations made by registered medical practitioners in the form prescribed by the law, stating the nature of the disorder justifying guardianship measures. The applications must be forwarded to the local social services authority within 14 days of the last medical recommendation. The person named as guardian in the application may be either a local social services authority or any other person, even the applicant him/herself.

Once appointed, if the guardian dies or gives written notice of his/her desire to resign, guardianship is taken over by the local social services authority which can then transfer the power to another person or remain the guardian. If it comes to the attention of the county court that any person other than a local social services authority having the guardianship of a patient has performed his/her functions negligently or in a manner contrary to the interests or the welfare of the patient, the court may order the guardianship of the patient to be transferred to the local social services authority or to any other person approved for the purpose by that authority.

Duration of guardianship

Guardianship is granted for an initial period of 6 months. Subject to approval and unless the person has been previously discharged, the guardianship may be renewed for a further 6 months and from then on for periods of one year at a time.

Guardianship under the Court of Protection (deputyship)

Under Part VII of the Mental Health Act 1983, a person who is incapable due to a mental disorder of managing and administering his/her property and affairs may come within the jurisdiction of the Court of Protection. The management of the property and affairs of mentally disordered people is a system of protection which dates back to the Middle Ages when this was the responsibility of the Crown. The Mental Capacity Act 2005 introduced deputies for personal welfare who could be the same person as or separate to the deputy for property and affairs. The Court of Protection is not keen on appointing deputies for personal welfare matters, taking the view that social services/complaints procedures/Patient Advice and Liaison Service etc ought to be able to resolve issues locally. Since October 2007 only a small number of applicants have successfully been appointed as deputies for personal welfare.

The Court of Protection, in conjunction with the Office of the Public Guardian is responsible for the overall running of the person's financial affairs in conjunction with the deputy. The Court of Protection is responsible for the management of the property and affairs of a mentally disordered person and, since the implementation of the Mental Capacity Act, in some cases, their personal welfare, but may delegate this responsibility to a deputy.

Responsibilities of the Court of Protection

The judge may take the necessary steps to ensure:

the maintenance or other benefit of the patient and members of his/her family;

that provision is made for other persons or purposes which the patient would have taken care of were s/he not mentally disordered;

the administration of the patient's affairs.

His/her powers are fairly extensive and include the following:

The control and management of any property of the patient;

The acquisition, sale, exchange, charging or other disposition of or dealing with any property of the patient;

The carrying on by a suitable person of any profession, trade or business of the patient;

The dissolution of a partnership of which the patient is a member;

The conduct of legal proceedings in the name of the patient or on his/her behalf;

The execution of a will on behalf of the patient;

The exercise of any power (including a power to consent) vested in the patient.

The appointment and duties of deputies and the Office of the Public Guardian

However, as stated above, the Court of Protection may appoint a deputy. An application for such an appointment is usually made by a close relative, but could be made by anyone, e.g. a friend, local authority or solicitor. Alternatively, the Public Trustee, who is the head of the Office of the Public Guardian, could make it. A person may apply for his/her own appointment as deputy or that of someone else.

Before appointing a deputy for property and finances, the Court of Protection must obtain medical evidence about the mental capacity of the person for whom a deputy is to be appointed, as well as details about his/her family and financial assets and liabilities. In most cases the applicant is asked to fill out a general application form, an assessment of capacity form, where an appropriate professional confirms the person lacks capacity to make the decisions that the applicant would make for them, and a number of different other forms depending on the persons situation. The applicant may need to apply to ask the court for permission to apply to be a deputy in certain situations, for example where they are asking to make decisions about a person’s health and welfare (Her Majesty’s Court Service, undated).

Deputies are usually asked to take out insurance for their decisions in the form of a security bond. Failure to do so may result in a person not being appointed and alternative arrangements being made.

Appeals and control of the deputy

Appeals against decisions made in accordance with the Court of Protection can be made to a nominated High Court Judge. The Office of the Public Guardian supervises deputies to differing degrees depending on the nature of decisions they are making, they will make an annual charge for this supervision (Crown, 2009a). The Office of the Public Guardian can also make enquiries into the way the deputy is carrying out his/her duties. Visits may be made by legal visitors who are senior qualified legal advisors appointed by the Lord Chancellor or general visitors, who regularly visit people in their own homes. Deputies must not obstruct these visitors. The Office of the Public Guardian can ask the Court of Protection to discharge a deputy (Crown, 2009a).

The deputy's powers come to an end when the Court is satisfied that the person concerned has recovered, when the person concerned dies or when an Order is made to appoint a new deputy. If a deputy fails to provide the required accounts, s/he may be discharged and replaced.

Powers of Attorney

Under the Enduring Powers of Attorney Act 1985 (repealed by the Mental Capacity Act 2005), a person could create a power of attorney which was an enduring power. This meant that the power granted to an attorney continued to be valid if the donor (the person granting it) lost their mental capacity. An enduring power of attorney could grant the attorney the general authority to handle all or a specified part of their property or affairs. Alternatively, the donor could grant the attorney the authority to do specified things on their behalf and could attach conditions to this. [Any enduring power of attorney which had effect before the repeal of the Act came into force continues to have effect.]

If the donor would normally have benefited the attorney or another person in some way or provided for their needs, the attorney could do so on behalf of the donor without this necessitating the donor's consent. Similarly, the attorney could without obtaining consent purchase presents (e.g. for births, marriages or anniversaries etc.) or make donations to charities provided that there were no restrictions on doing this in the power of attorney. The value of each gift or donation had to be reasonable in view of the size of the donor's estate.

The enduring power of attorney could be used when the donor still has capacity and without being registered if that was how it was set up. However it has to be registered when the person looses the capacity to make the decision themselves. As soon as the attorney of an enduring power had reason to believe that the donor was or was becoming mentally incapable, they had to make an application to the court for the registration of the enduring power of attorney. The court would not authorise the registration of the enduring power of attorney if a receiver had been appointed under Part VII of the Mental Health Act of 2007. The court would also refuse registration if:

the power of attorney was not valid;

the power created by the instrument no longer subsisted;

the application was premature because the donor was not yet becoming mentally incapable;

the donor was persuaded to create the power as a result of the use of fraud or undue pressure;

as a result of the attorney's relationship to or connection with the donor, the attorney was unsuitable.

Once registered, the donor could neither revoke the power nor extend, restrict or change the scope or content of it. The courts would cancel the registration of a power of attorney if the donor died or went bankrupt, or if the attorney died, became mentally incapable or went bankrupt.

According to section 9 of the Mental Capacity Act 2005, a person can make a lasting power of attorney (LPA) under which the donor confers on the attorney the authority to make decisions about all or any of the following:

The donor’s personal welfare or specified matters concerning their personal welfare, and

The donor’s property and affairs or specified matters concerning their property and affairs

This includes the authority to make such decisions in circumstances where the donor no longer has capacity. The LPA can be revoked at any time when the donor has the capacity to do so.

For the LPA to be valid, the donor must be at least 18 years old and have the capacity to write the document. The appointed attorney (known as the donee in the Act) must also have reached 18. An attorney who is bankrupt cannot be appointed to manage the donor’s property and affairs. Two or more people may be appointed as attorneys in which case, it must be specified whether they can act jointly, jointly and severally or jointly in respect of some matters and jointly and severally in respect of others.

Attorneys do not have the power to appoint substitutes or successors but the donor can make provisions in the LPA for the replacement of attorneys in case of death, bankruptcy, rupture of a marriage or civil partnership or incapacity.

Section 11 of the Mental Capacity Act contains a section on restrictions covering the use of force, restraint and the deprivation of liberty.

Where an LPA authorises the attorney to make decisions about personal welfare, this authority extends to giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for the donor but is subject to any conditions or restrictions expressed in the LPA. Medical treatment is ultimately a clinical decision and the attorney cannot demand medical treatment which the practitioner thinks is dangerous or not worth while (Crown, 2009b). It does not, however, authorise the giving or refusing of consent to the carrying out or continuation of life-sustaining treatment unless the instrument contains express provision to that effect.

Conditions for purchasing gifts and making presents are the same as in the Enduring Powers of Attorney Act, the attorney must not benefit from the decisions that they are making.

Capacity in specific domains

Marriage

A marriage is valid provided that both parties were mentally capable of understanding the nature of marriage and of consenting to it at the time it was contracted. As only limited mental capacity is required for the fulfilment of these criteria, the appointment of a guardian does not necessarily affect the right to marry. Similarly, the Court of Protection cannot prevent a person from getting married, as it is the Registrar of Marriages who must be satisfied that the person concerned understands the implications of the marriage contract. However, a receiver should report the marriage to the Court of Protection in case this affects the person's financial situation (Public Trust Office 1999).

According to the Matrimonial Causes Act of 1973 a marriage can be annulled at the request of either party if at the time the marriage was contracted either party, although capable of giving valid consent, was suffering from mental disorder of a sufficient degree to make that person unfitted to marriage. For the request to be successful, the person making the request must prove that the mental disorder of the other party rendered him/her incapable of living in a married state and fulfilling the obligations of the marriage contract. Proceedings must be started within 3 years of the marriage contract.

Nothing in the Mental Capacity Act 2005 permits a decision on any of the following to be made on behalf of a person with incapacity:

Consenting to marriage or a civil partnership;

Consenting to have sexual relations;

Consenting to a decree of divorce being granted on the basis of two years’ separation;

Consenting to a dissolution order being made in relation to a civil partnership on the basis of two years’ separation.

Voting capacity

A person lacking mental capacity does not automatically lose the right to vote.

The Representation of the People Act 1983 specifies who is entitled to vote. According to this act, a person with dementia would be able to vote provided that s/he had a place of residence for voting purposes and was not subject to any legal incapacity to vote. If an individual is resident in a care home or hospital for a sufficient (or indefinite) length of time, then this should be the address at which they are registered.

The Electoral Commission does not define a person with dementia as having a legal incapacity to vote and have therefore has indicated that a person with dementia can vote no matter what their capacity. Their guidance states;

`A lack of mental capacity is not a legal incapacity to vote; persons who meet the other registration qualifications are eligible for registration regardless of their mental capacity or lack thereof. Electoral Registration Officers should therefore ensure that persons with learning difficulties or mental health conditions are included in the register of electors.'

`A mental health condition is not in itself a legal incapacity to vote and so is not, therefore, a bar to registration. The Electoral Registration Officer should assist, if requested, those who are making an application or who wish to find out more information about the electoral system. '

Nothing in the Mental Capacity Act 2005 permits a decision on voting at an election for any public office, or at referendum, to be made on behalf of a person with incapacity:

Contractual capacity

Contractual capacity is determined on a case by case basis. Courts have the responsibility to balance protection of the incapacitated person with protection of the other contracting party, particularly as the latter may not have been aware of the incapacity of the former. Consequently, a contract made by an incapacitated person is not automatically voidable, but they would have the option to void it had the other party been aware of the incapacity at the time of making the contract.

Transactions involving the sale of goods

Section 3 (2) of the Sale of Goods Act of 1979 provides a certain degree of protection against unscrupulous sellers, whilst also ensuring that an incapacitated person pays for goods or services which are classed as necessaries. It states that:

"Where necessaries are sold and delivered to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price for them."

Necessaries are defined under 3 (3) as "goods suitable to the condition in life of the person concerned and to his actual requirements at the time of the sale and delivery." Suitability to a person's condition refers to his/her place in society and not his/her mental or physical condition. It has been established in case law that a person's requirements are determined by what s/he already possesses. If the person already possesses a sufficient quantity of a particular item and then purchases a large quantity of the same item, it would be unlikely to be considered as a necessary. People covered by the Sale of Goods Act of 1979 must pay a reasonable price for goods and this is not necessarily the sale price.

Unfortunately, this law depends on the supplier making enquiries as to the person's actual requirements. It doesn't apply to contracts of hire purchase, barter or contracts for the supply of services to the incapacitated person.

Door to door sale of goods and services

The door to door sale of goods and services are governed by the Consumer Protection (Cancellation of Contracts concluded away from Business Premises) (Amendment) Regulation 1998, No. 3050). Under these regulations, the contract only becomes valid after a seven day period has elapsed. This means that consumers can withdraw within seven days without being liable to buy. The salesperson can no longer claim the contract was valid even if the person consented to it. Also, if the salesperson does not inform the buyer of this cancellation period, s/he would be committing a criminal offence.

The above regulations apply to most sectors, e.g. contracts involving gas and electricity supplies, most building repairs, double glazing, burglar alarms and the purchase of goods . However, they do not apply to contracts for the supply of food and drink and other goods destined for household consumption which are supplied by regular deliverers, e.g. doorstep milk delivery.

Contracts made by people subject to a Court of Protection order

A person whose affairs are being handled by a judge of the Court of Protection (under the Mental Health Act 2007 cannot enter into any contract which falls under the authority of the Court. However, the court may delegate the power to enter into a contract on behalf of the person under court protection to a deputy. A contract is void even if the other party was unaware that the person's affairs were being handled by the Court. A contract for necessaries would also be considered void.

If a person is incapable, s/he cannot personally sue or be sued. Legal proceedings can be conducted on his/her behalf by a "litigation friend" if the incapacitated person is bringing the proceedings. If, on the other hand, the proceedings are being brought against the incapacitated person, the legal proceedings are conducted by a guardian ad litem.

Testamentary capacity

A person must have testamentary capacity in order to write and sign a will. The person making the will (a testator in the case of a man and a testatrix in the case of a woman) must be able to:

understand the nature of the act and its effects

understand the extent of his/her property

comprehend and appreciate the claims to which s/he ought to give effect (although s/he may decide against benefiting certain relatives or potential beneficiaries)

S/he must not be suffering from any mental disorder which would lead him/her to dispose of property and assets differently than s/he would have done were it not for the mental disorder. Following the Banks v Goodfellow case (1870), partial unsoundness of mind is not considered to affect testamentary capacity unless it actually influences the way the testator/testatrix disposes of his/her property.

The will of an incapable person may still be considered as valid even if it contains an apparently unwise decision concerning the disposal of property or assets. In this respect, an incapacitated person is granted the same rights as a competent person to make decisions which may seem capricious, foolish, biased or prejudiced to other people. This is based on the Bird v Luckie case (1850) in which the judge stated with regard to testamentary capacity that people were not legally obliged to behave "in such a manner as to deserve approbation from the prudent, the wise or the good".

Under Part VII of the Mental Health Act 2007, if a person is incapable of managing his/her own affairs and incapable of making a will, a request can be made to the Court of Protection to draw up a statutory will. (The mere fact that a person is unable to manage his/her property and affairs does not automatically mean that s/he should be prevented from making a will.) The Court will obtain medical evidence of the existence of both kinds of incapacity. The person authorised by the Court to execute the will signs on behalf of the person and with his/her own name in the presence of two or more witnesses. It is then sealed with the official seal of the Court of Protection. Such a will is then considered to have the same effect as if the person had been capable of making a valid will and as if it had been executed by him/her in the manner required by the Wills Act of 1837.

Criminal responsibility

In English law, a person is considered to be sane unless the contrary can be proved and it is up to the person accused of a crime to prove his/her insanity (Stewart and Burgess, 1996). Once a plea of insanity has been made as a defence, the McNaghten rules are applied. These rules derive from a case in 1843 whereby Daniel McNaghten attempted to murder the private secretary of the Prime Minister, Sir Robert Peel, but killed someone else by mistake. He was suffering from insane delusions at the time of the crime and the jury gave a verdict of not guilty by reason of insanity. There are two components of the McNaghten rules:

A person is presumed sane until the contrary is proved

To establish a defence of insanity, it must be proved that at the time of committing the act the person was due to a disease of the mind or defect of reason unable to understand the nature and quality of the act or did not know that it was wrong.

References

British Medical Association and The Law Society (1995), Assessment of mental capacity; guidance for doctors and lawyers - A report of the British Medical Association and The Law Society, BMA, London.

British Medical Association and The Law Society (2009), Assessment of Mental Capacity - A practical guide for doctors and lawyers (3rd edition), BMA, London

Crown (2009a), A guide to supervision of Deputies, the Office of the Public Guardian advice booklet, OPG507

Crown (2009b), Lasting Power of Attorney: A guide for people who want to make a Personal Welfare Lasting Power of Attorney, Office of the Public Guardian, Booklet LPA 102,

General Medical Practice (2009), Good Medical Practice, GMC

Her Majesty’s Court Service (undated), Making an application to the Court of Protection, advice booklet COP42.

Public Trust Office (1999), Duties of a Receiver, Public Trust Office

Public Trust Office (1999), Making an Application, Public Trust Office

Acknowledgements

The above information was published in the 2011 Dementia in Europe Yearbook as part of Alzheimer Europe's 2010 Work Plan which received funding from the European Union in the framework of the Health Programme. AE also gratefully acknowledges the support it received from Fondation Médéric Alzheimer for its project on legal capacity and proxy decision making in dementia